Grant v. Commissioner of Correction

David GRANT (Inmate #336400) v. COMMISSIONER OF CORRECTION

No. CV164007926S

Superior Court of Connecticut, Judicial District of Tolland, Somers, Geographic Area 19

December 5, 2018

UNPUBLISHED OPINION

OPINION

Bhatt J.

The petitioner alleges that the retroactive application of two public acts-Public Acts 2013, No. 13-3 § 59 ("P.A 13-3") and Public Acts 2015, No. 15-216, § 9 ("P.A. 15-216")-violates the prohibition against ex post facto laws contained in the United States Constitution^[1] because they render him ineligible to earn and apply risk reduction earned credits ("RREC") to advance his parole eligibility and discharge dates. In light of our Supreme Court’s decision in Breton v. Commissioner of Correction, 330 Conn. 462 (2018), this court agrees and for the reasons that follow the petition is GRANTED.

I. FACTS

The petitioner was arrested and charged with murder in violation of General Statutes § 53a-54a, assault in the first degree in violation of General Statutes § 53a-59(a)(5) and criminal possession of a firearm in violation of General Statutes § 53a-217. The incident underlying these offenses occurred on June 24, 2012.

After a trial by jury, the petitioner was found not guilty of murder, but guilty of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a and guilty of assault in the first degree. The court found him guilty of criminal possession of a firearm. On June 26, 2015, he was sentenced to a total effective sentence of forty-seven years to serve, seven of which were mandatory, followed by ten years’ special parole.^[2] He subsequently appealed his convictions and our Appellate Court affirmed. State v. Grant, 179 Conn.App. 81, 178 A.3d 437, cert. denied, 328 Conn. 910, 178 A.3d 1041 (2018).

The petitioner initiated the present action by way of petition for writ of habeas corpus filed on March 15, 2016. Pursuant to an order of the habeas court, Newson, J., the petitioner filed a sixth amended petition on July 17, 2018, bifurcating the instant claims from those alleging ineffective assistance of counsel.^[3] The petitioner filed a motion for summary judgment and the respondent filed an objection and cross motion for summary judgment which the petitioner objected to. The matter was set down fora trial on July 25, 2018. On that date, the parties agreed to present testimonial evidence to the court.^[4] The court heard testimony from three witnesses: Michelle Deveau, a records specialist for the department of corrections ("DOC"); Heidi Palliardi, a supervisor with DOC’s Sentence Calculation and Interstate Management Unit; and Richard Sparaco, the executive director of the Board of Pardons and Paroles ("parole board"). The parties also submitted numerous exhibits.

Briefly, the petitioner claims that P.A. 13-3 violates the ex post facto clause because it prohibits him from earning and applying RREC to advance the date at which he could be considered for parole release by the parole board. He further claims that P.A. 15-216 violates the ex post facto clause because it prohibits him from earning and applying RREC to advance his maximum release date while he is serving the manslaughter sentence.^[5]

Based upon the credible evidence presented at the hearing on July 25, 2018, the court finds the following: once an eligible inmate signs the offender accountability plan and adheres to correctional rules and regulations, RREC credits are automatically calculated and awarded by a computer system. The default is to award the inmate RREC on a monthly basis unless a disciplinary report results in forfeiture. There are twenty-eight rules associated with the granting and rescinding of credit, but credit is never taken away arbitrarily, rather only for just cause. The computer automatically posts RREC on the first of every month and this is displayed on the inmate’s time sheet. The forfeiture of RREC is also done by computer when the disciplinary history is inputted into the computer system. Further, an inmate who becomes ineligible to earn RREC because of failing to comply with correctional regulations is not permanently barred from earning RREC.

The petitioner in this case earned fifteen days of RREC from the date of his sentencing until November 1, 2015, when he became statutorily ineligible to earn RREC as a result of being convicted of a "violent offense." At the time he became ineligible to earn RREC, he had forfeited ten of those days. DOC, hover, continued to keep track of the RREC he would have earned, had he remained eligible. This is reflected using the term "non comply" on his time sheet. Petitioner’s Exhibit 6 ("P. Ex.").

An inmate convicted of manslaughter in the first degree with a firearm would be ineligible to apply RREC to advance his parole eligibility date due to that offense being designated a "violent offense."

II. APPLICABLE STATUTE

A. § 18-98e at the Time of the Petitioner’s Offense

Effective July 1, 2011, the legislature adopted Public Acts 2011, No. 11-51 ("P.A. 11-51"), § 22 of which was codified as General Statutes § 18-98e ("§ 18-98e"). Pursuant to P.A. 11-51 § 22, the Commissioner of Correction was given the discretion to award RREC toward a reduction of an inmate’s sentence, up to five days per month, for positive conduct. The statute categorically prohibited inmates convicted of certain offenses from being eligible to earn these discretionary credits. As of the effective date of P.A. 11-51, inmates who were sentenced for a "violation of section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-70a or 53a-100aa" were statutorily barred from being eligible to earn RREC.

Subsection (b) provides the conditions which must exist for an inmate to be able to earn these credits: adherence to the inmate’s offender accountability plan, participation in eligible programs and activities, and good conduct and obedience to institutional rules as designated by the commissioner. The subsection also provides that good conduct and obedience to institutional rules alone shall not entitle an inmate to such credit, and gives the commissioner, in his or her discretion, the authority to forfeit all or any portion of such earned RREC for any act of misconduct or insubordination or refusal to conform to recommended programs or activities or institutional rules occurring at any time during the service of the sentence or for other good cause.

Subsection (d) provides, in relevant part, that in "no event shall any credit earned under this section be applied by the commissioner so as to reduce a mandatory minimum term of imprisonment such inmate is required to serve by statute."

This was the operative version of the statute in effect on the date that the petitioner committed his offenses: June 24, 2012.

B. § 18-98e as Amended in 2015

In 2015, the legislature once again amended § 18-98e to add offenses to the list of statutorily ineligible offenses for the purposes of earning RREC. P.A. 15-216. After the effective date of P.A. 15-216-October 1, 2015-anyone who is convicted of "a violation of section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55, 53a-55a, 53a-70a, 53a-70c or 53a-100aa, or is a persistent dangerous felony offender or persistent dangerous sexual offender pursuant to section 53a-40"; (emphasis added) P.A. 15-216; is barred from being eligible to earn RREC. These offenses are generally classified as violent offenses and includes a violation of General Statutes § 53a-55a-Manslaughter in the First Degree with a Firearm. Thus, an inmate convicted of that offense, like the petitioner in this case, is now statutorily barred from earning any such credits to reduce his sentence.

C. § 54-125a at the Time of the Petitioner’s Offense

At the same time that the legislature enacted § 1.8-98e in 2011, it amended the parole eligibility provision in General. Statutes § 54-125a to provide that a person convicted of an offense where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole until such person has served not less than eighty-five percent of the definite sentence imposed less any risk reduction credit earned under the provisions of section 18-98e. General Statutes (Rev. to 2011) § 54-125a(b)(2), as amended by P.A. 11-51, § 25. The subsection of § 54-125a addressing parole hearings was similarly amended to account for earned RREC. P.A. 11-51, § 25. Thus, an inmate who committed a violent offense after the enactment of P.A. 11-51 § 25 would be eligible for parole release at eight-five percent, but that parole eligibility date could be reduced by earned RREC. The petitioner in the present case is one of those individuals.

D. § 54-125a as Amended in 2013

Effective July 1, 2013, the legislature again amended § 54-125a. P.A. 13-3. Specifically, with regard to offenses like one of those of which the petitioner was convicted, the legislature eliminated the language that permitted the parole eligibility date to be advanced by the application of any earned RREC. P.A. 13-3. Thus, under this 2013 amendment, "any risk reduction credit earned by an inmate, and not subsequently revoked, would still be applied to reduce his sentence, but would not be applied to advance his parole eligibility date. In other words, he would only be eligible for a hearing to determine whether he should be granted parole after he had served 85 percent of his original sentence ..." Perez v. Commissioner of Correction, 326 Conn. 357, 365, 163 A.3d 597 (2017). Thus, once P.A. 13-3 took effect on July 2, 2013, the petitioner was no longer able to have his parole eligibility date advanced by RREC.

III. DEFENSES

The respondent raises three defenses: first, that there is no liberty interest...